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Fifth Circuit Stands by Decision to Halt Shot-or-Test Mandate

Nov. 12, 2021, 11:38 PM

A U.S. appeals court has extended its Nov. 6 order pausing President Joe Biden’s shot-or-test mandate for businesses with 100 or more employees.

The ruling, issued today by the New Orleans-based U.S. Court of Appeals for the Fifth Circuit, solidifies its earlier order blocking implementation of the Occupational Safety and Health Administration’s emergency regulation. Its ruling comes ahead of a Judicial Panel on Multidistrict Litigation lottery to determine which federal appeals court will be assigned to adjudicate the many legal challenges to the measure now pending across the country. The lottery is slated for Nov. 16.

In a 22-page opinion, the court had harsh words for the vaccine mandate. The mandate “threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s),” the court said.

“Likewise, the companies seeking a stay in this case will also be irreparably harmed in the absence of a stay, whether by the business and financial effects or a lost or suspended employee, compliance and monitoring costs associated with the Mandate, the diversion of resources necessitated by the Mandate, or by OSHA’s plan to impose stiff financial penalties on companies that refuse to punish or test unwilling employees,” the court said.

The U.S. had asked the court to set aside its prior order to allow that process to play out.

OSHA’s rule requires qualifying businesses to ensure that all employees are fully vaccinated by Jan. 4, or subjected to testing for Covid-19 at least weekly.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

Barring a long-lasting injunction, employers will have to comply with other parts of the rule by Dec. 5, including developing a compliance plan, offering paid time off for vaccinations, and requiring unvaccinated workers to wear masks.

The Fifth Circuit is considering challenges filed by Texas, joined by Louisiana, Mississippi, Utah, South Carolina, and companies that claim they’re adversely affected by the rule. The plaintiffs contend the emergency temporary standard, formally published Nov. 5, exceeds OSHA’s statutory authority and that the requisite “grave danger” the safety agency cited as justification for the expedited rulemaking doesn’t actually exist outside of the health-care industry.

The case is BST Holdings LLC v. OSHA, 5th Cir., No. 21-60845, 11/12/21

To contact the reporter on this story: Andrew Harris in Washington at aharris@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jo-el J. Meyer at jmeyer@bloomberglaw.com

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